생존 여부가 불확실한 수술의 위험을 인수하는 환자의 자기결정권 행사의 조건 -대법원 2014. 6. 26. 선고 2009도14407 판결이 갖는 이론적 함의를 평석하며-

When a physician performs an invasive treatment such as surgery, both the treatment itself and the resulting bodily harm formally constitute the crime of bodily injury. However, under prevailing case law and legal doctrine, such treatment is not criminal, as its unlawfulness is negated by the patient’s consent pursuant to Article 24 of the Criminal Act. A question is raised as to whether this theory of victim’s consent can be applied in the same way to cases where the patient has died. A patient seeks medical treatment from a physician to restore their health, not to consent to the intentional infringement of their life by the physician. Even if such consent is given, the physician’s medical act would be punished as it constitutes the crime of murder with consent as stipulated in Article 252, Paragraph 1 of the Criminal Act. Ultimately, where a patient consents to surgery but dies in the course of the operation, the physician’s liability must be considered under the law of negligence, specifically the offense of professional negligence resulting in death. This issue has been discussed as a legal point of contention regarding whether victim’s consent can be applied to negligent offenses as well. However, in a recent decision, the Supreme Court acquitted a surgeon who performed a high-risk operation with the patient’s consent, establishing a new legal precedent instead of applying the doctrine of victim’s consent. In this case, the patient requested a non-transfusion surgical procedure, and the surgeon explained the risks associated with that method and proceeded with the surgery after securing the patient’s consent. During the non-transfusion procedure, the surgeon, respecting the patient’s previously expressed wishes, withheld a blood transfusion even as the patient experienced life-threatening blood loss. The patient subsequently passed away. The Supreme Court’s decision on this case did not review legal doctrines like victim’s consent or the negation of unlawfulness. Instead, the court’s holding was limited to the absence of a violation of the doctor’s duty of care, thus negating the elements of the crime of professional negligence resulting in death. Commentators have sought to analyze the Supreme Court’s ruling on this matter through the legal doctrines of victim’s consent or a conflict of duties. This analysis, however, appears to be based on a misunderstanding of the decision's underlying rationale. The essential implication of the Supreme Court’s ruling is that performing a life-threatening surgery in accordance with the patient’s wishes does not amount to negligent act. The reason the surgeon’s operation isn’t considered a negligent act is that the patient assumed the risks of the surgery by signing a liability waiver. To view the physician as not having occupational negligence, the Supreme Court’s ruling in this case presented two conditions:First, that the patient’s right to self-determination was validly exercised through the doctor’s fulfillment of the duty to explain; Second, that the exercise of that right to self-determination is evaluated as having equal value to life, or that there are special circumstances making it difficult to weigh the two against each other. This ruling accurately mentions the two requirements for the assumption of risk.